The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Law & Government

My Skepticism About Fears of a Constitutional Convention


A New York Times article yesterday ("A Second Constitutional Convention? Some Republicans Want to Force One") discusses conservative attempts to get a constitutional convention that would propose a constitutional amendment (it takes 2/3 of the states to call for one, and one question is how many have already done so), and criticisms of those attempts. After two paragraphs discussing the pro-convention views of "Jodey Arrington, a conservative Texas Republican," it goes on thus:

To Russ Feingold, the former Democratic senator from Wisconsin and president of the American Constitution Society, a liberal judicial group, that is a terrible idea. Mr. Feingold sees the prospect of a constitutional convention as an exceptionally dangerous threat from the right and suggests it is closer to reality than most people realize as Republicans push to retake control of Congress in November's midterm elections.

"We are very concerned that the Congress, if it becomes Republican, will call a convention," said Mr. Feingold, the co-author of a new book warning of the risks of a convention called "The Constitution in Jeopardy."

"This could gut our Constitution," Mr. Feingold said in an interview. "There needs to be real concern and attention about what they might do. We are putting out the alert."

While the rise of election deniers, new voting restrictions and other electoral maneuvering get most of the attention, Mr. Feingold rates the prospect of a second constitutional convention as just as grave a threat to democratic governance.

Elements on the right have for years been waging a quiet but concerted campaign to convene a gathering to consider changes to the Constitution. They hope to take advantage of a never-used aspect of Article V, which says in part that Congress, "on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments."

Throughout the nation's history, 27 changes have been made to the Constitution by another grindingly arduous route, with amendments originating in Congress subject to ratification by the states.

With sharp partisanship making that path near impossible, backers of the convention idea now hope to harness the power of Republican-controlled state legislatures to petition Congress and force a convention they see as a way to strip away power from Washington and impose new fiscal restraints, at a minimum.

But here's the thing: If a constitutional convention is called and proposes amendments, they still have to be ratified by legislatures or conventions (the convention gets to decide which) in 3/4 of all states:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

Maybe I'm wrong, but I expect that this will be a pretty serious bar to any particularly radical proposals. If you disagree, tell me this: What amendments do you think a convention could propose that would get the support of legislatures or conventions in at least 38 of the 50 states, and how conservative (or liberal) do you think those amendments would be?

By the way, the New York Times article does mention the 38-state ratification requirement—in the 24th out of 28 paragraphs.

UPDATE [11:06 am]: Just to be clear, I'm skeptical that a convention would produce any particular useful amendments, either.